'Personhood' argues fetal rights are the next frontier of the anti-abortion movement

Summary

Summary of NPR's Book of the Day Episode: "Personhood" Argues Fetal Rights Are the Next Frontier of the Anti-Abortion Movement

Release Date: May 8, 2025
Host: Andrew Limbong
Guest: Mary Ziegler, Professor at UC Davis and Author of The New Civil War Over Reproduction

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Introduction

In the May 8, 2025, episode of NPR's Book of the Day, host Andrew Limbong delves into the evolving landscape of the anti-abortion movement in America. The episode centers around Mary Ziegler's latest work, The New Civil War Over Reproduction, which explores the concept of fetal personhood as the next significant battleground in the abortion debate.

The Emergence of Fetal Personhood

Historical Context and Origins

Mary Ziegler explains that the idea of fetal personhood emerged in the 1960s as a strategic response to shifting public sentiments and legal frameworks surrounding abortion. Initially, traditional arguments against abortion—such as concerns over promiscuity or moral decline—became less effective. To adapt, abortion opponents began to assert that fetuses possess constitutional rights from the moment of conception.

"The idea of fetal personhood began as a strategic necessity... abortion opponents argued that it was simply unconstitutional to change or liberalize abortion laws because a fetus or unborn child had constitutional rights."
— Mary Ziegler [02:51]

Unification of the Anti-Abortion Movement

Ziegler notes that while the anti-abortion movement comprises various factions, the push for fetal personhood has become a unifying theme. Despite differing opinions on the implications and enforcement of fetal personhood, there is broad consensus within the movement regarding its foundational principles.

"There's virtually no disagreement within the anti-abortion movement about fetal personhood, even though there's deep divides about what fetal personhood means and how you would enforce it in law."
— Mary Ziegler [03:40]

Fetal Personhood Defined

Core Principles

Fetal personhood in the U.S. political context involves two main assertions:

1. Immediate Personhood: A unique human being exists from the moment of fertilization.
2. Constitutional Rights: This personhood grants fetuses constitutional rights, thereby impacting laws related to abortion and reproductive technologies.

"In the US Politics, really what we're talking about is the idea, one, that there's a separate unique human being at the moment an egg is fertilized, and two, the claim that because of that, that person has constitutional rights."
— Mary Ziegler [03:49]

Implications for Reproductive Rights

Recognizing fetal personhood extends beyond abortion, potentially affecting areas such as in vitro fertilization (IVF) and contraception. For instance, IVF procedures could be challenged if embryos are considered persons with legal rights.

The Anti-Abortion Movement's Evolution

From Civil Rights to Reproductive Rights

Ziegler outlines how the anti-abortion movement has historically aligned itself with other social justice movements, framing their struggle as one for equality. This alignment has evolved through various phases:

• 1960s: Civil rights for people of color.
• 1970s: Women's rights movement.
• 1980s: Victims' rights movement.
• Present: Fetal personhood as a civil rights issue.

"The fight for fetal personhood as a window into how conservatives are thinking of potentially reimagining constitutional rights and constitutional equality well outside the context of abortion at this moment."
— Mary Ziegler [04:43]

The New Civil War Analogy

The title of Ziegler's book, The New Civil War Over Reproduction, reflects the intensity and divisiveness of the current reproductive rights debate. Anti-abortion advocates liken the contemporary struggle to the historical Civil War, emphasizing the perceived irreconcilability of pro- and anti-abortion states.

"Just as before the Civil War, we couldn't live in a nation that was half states that permitted slavery and half states that did not. Abortion opponents are saying we cannot live in America that has half of the states that don't allow abortion and half that do."
— Mary Ziegler [06:23]

Legal Controversies and Case Studies

Alabama Supreme Court and IVF

A pivotal moment discussed is the Alabama Supreme Court case that upheld the personhood of embryos created through IVF, severely restricting access to fertility treatments. This case exemplifies the tangible legal consequences of adopting fetal personhood.

"If you believe that rights begin the moment an egg is fertilized... you might have a problem with IVF."
— Mary Ziegler [08:08]

Impact on Contraception

While contraception is not directly targeted, anti-abortion advocates argue that certain contraceptives function as abortifacients. This perspective has led to efforts to regulate or criminalize products like IUDs and emergency contraceptives.

"They're arguing that drugs and devices we commonly think of as contraceptives... are abortifacients, and that protecting fetal rights involves probably regulating or criminalizing those drugs, too."
— Mary Ziegler [08:08]

Future Directions of the Anti-Abortion Movement

Dependence on Judicial Decisions

Ziegler points out the movement's increasing reliance on the judiciary to advance fetal personhood, particularly with the potential for a more conservative Supreme Court under former President Trump's influence.

"The anti-abortion movement... really, no one was happy with the Dobbs decision overturning Roe v. Wade... they've directed their focus to the five justices on the Supreme Court understanding that Donald Trump may have a chance to make the court more conservative."
— Mary Ziegler [10:30]

Voter Influence and Legal Battles

The movement's success may hinge on the responsiveness of the courts to voter sentiments and their ability to influence legislation without overtly criminalizing abortion. There is an acknowledgment that a punitive approach may not align with broader public opinion.

"They understand that voters are not likely to embrace a very criminal vision of fetal personhood... They've directed their focus to the five justices on the Supreme Court."
— Mary Ziegler [10:30]

Notable Quotes

• Mary Ziegler on Strategic Necessity:

  "The idea of fetal personhood began as a strategic necessity..."
  — [02:51]

• Mary Ziegler on Constitutional Rights:

  "Because of that, that person has constitutional rights."
  — [03:49]

• Mary Ziegler on the New Civil War:

  "Abortion opponents are saying we cannot live in America that has half of the states that don't allow abortion and half that do."
  — [06:23]

• Mary Ziegler on IVF Challenges:

  "If you believe that rights begin the moment an egg is fertilized... you might have a problem with IVF."
  — [08:08]

• Mary Ziegler on Judicial Dependency:

  "Abortion opponents... directed their focus to the five justices on the Supreme Court understanding that Donald Trump may have a chance to make the court more conservative."
  — [10:30]

Conclusion

Mary Ziegler's The New Civil War Over Reproduction provides a comprehensive analysis of the anti-abortion movement's shift towards fetal personhood as a central strategy. By framing fetal rights within the constitutional landscape, the movement seeks to redefine the legal and moral discourse surrounding abortion and reproductive technologies. The episode underscores the complexity of balancing fetal rights with individual liberties and highlights the critical role of the judiciary in shaping the future of reproductive rights in America.

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This summary captures the essence of the episode, providing an overview of the discussions between Andrew Limbong and Mary Ziegler, enriched with direct quotes and timestamps for reference.

Transcript

[Andrew Limbong]

All right, before we start the show, you may have heard that President Trump has issued an executive order seeking to block all federal funding to npr. This is the latest in a series of threats to media organizations across the country. Millions of people, people like you, depend on the NPR network as a vital source of news, entertainment, information and connection. And now we're asking you to join the movement to defend public media. Visit donate.NPR.org and if you already support us via NPR or another means, thank you. Your support means so much to us. You help make NPR shows freely available to everyone. Now we're proud to do this work not just for you, but with you. Hey, it's NPR's Book of the Day. I'm Andrew Limbong. Mary Ziegler is a professor at UC Davis who thinks big picture about the anti abortion movement. And while that movement is a big tent, one of the loudest voices is arguing for fetal personhood. Zigler's new book is a history of that argument. It's titled the New Civil War Over Reproduction. And she's not being hyperbolic when she uses that term, civil war to describe this fight. She's being pretty literal. Ziggler explains why to hear now's Tiziana Dearing after the break.

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[Tiziana Dearing]

When the Supreme Court overturned Roe vs Wade in 2022, that was only the beginning for some anti abortion activists. For them, a new book argues removing the constitutional right to abortion isn't the ultimate goal. Fetal personhood is. That's the idea that fetuses and embryos have the rights of people under the Constitution. And in order to understand where the anti abortion movement goes now, writes Mary Ziegler, we need to understand the history of the FET personhood movement. Zigler's a law professor at UC Davis and one of the leading historians of the abortion debate in America. The new book, the New Civil War Over Reproduction. Mary Ziegler, welcome.

[Mary Ziegler]

Thanks for having me.

[Tiziana Dearing]

So you note there are many factions in the anti abortion movement, but that those seeking fetal personhood are central. It's a movement that began in the 60s. Can you explain its origins and how it became arguably a, or, I don't know, maybe even the mainstream tenet in the anti abortion movement now.

[Mary Ziegler]

Yeah, absolutely. So the idea of fetal personhood began as a strategic necessity. So this was at a time when the United States was beginning to reform its criminal abortion laws for the first time, really in almost a century. And old arguments against abortion were no longer working, like the idea that abortion would lead to promiscuous sex or undermine Christian morals. So abortion opponents, who were mostly Catholic at the time, that's changed since, argued that it was simply unconstitutional to change or liberalize abortion laws because a fetus or unborn child had constitutional rights. But then that argument took on a life of its own. And I would argue now that there's virtually no disagreement within the anti abortion movement about fetal personhood, even though there's deep divides about what fetal personhood means and how you would enforce it in law.

[Tiziana Dearing]

So is there any part of that definition of what fetal personhood means that's sort of common enough or central enough that you could give us that definition here?

[Mary Ziegler]

Absolutely. So the people may be familiar with the idea of personhood in other contexts. It comes up in philosophy and bioethics and various faith communities, but in the US Politics, really what we're talking about is the idea, one, that there's a separate unique human being at the moment an egg is fertilized, and two, the claim that because of that, that person has constitutional rights. And today that argument would also carry through to the idea that those rights limit what voters could do to protect abortion or even in vitro fertilization.

[Tiziana Dearing]

So one of the things that was fascinating, Mary, as I read your book, was this kind of arc of, I don't know, attachment to other major legal movements that the anti abortion movement had in the 20th century, from anti slavery, civil rights, anti tobacco, marriage equality. Can you explain that arc for us?

[Mary Ziegler]

Absolutely, yeah. The anti abortion movement has always seen what it's doing as a fight for equality in America. And it's always reasoned about equality in terms of other fights against discrimination in the United States, starting with the fight for civil rights for people of color in the 1960s, through struggles over the rights of children born outside of marriage to the victims rights movement in the 1980s, the women's rights movement of the 1970s. So I think it's right to see the fight for fetal personhood as a window into how conservatives are thinking of potentially reimagining constitutional rights and constitutional equality well outside the context of abortion at this moment.

[Tiziana Dearing]

Sort of in the conversation Mary, it really strikes me that you have called this book the new Civil War over reproduction. That's a pretty conscious choice, this Civil War comparison.

[Mary Ziegler]

And it's one, I think, that echoes how personhood proponents themselves have thought about this. After Roe v. Wade was overturned, many leading anti abortion groups signed on to a document they called the New North Star Strategy, which lay fetal personhood out as the kind of next big goal for abortion opponents in America. And that document explicitly said, just as before the Civil War, we couldn't live in a nation that was half states that permitted slavery and half states that did not. Abortion opponents are saying we cannot live in America that has half of the states that don't allow abortion and half that do. So they see this Civil War analogy as much as I do.

[Tiziana Dearing]

So this idea that we heard really quite a bit before the Dobbs decision overturning Roe versus Wade, but also since then, that the thrust of the movement was to return regulation of abortion to the states, that doesn't sound like that's the end game in the framing you just gave me, Mary.

[Mary Ziegler]

Absolutely. The anti abortion movement, really, no one was happy with the Dobbs decision overturning Roe v. Wade. If you dig deep enough, abortion opponents. Wait a minute.

[Tiziana Dearing]

Nobody was happy with it?

[Mary Ziegler]

Well, the abortion opponents were happy in the sense of it was a step in the right direction, but they were not happy in the sense of we won and now the fight is over. Because of course, as we've seen, abortions have not declined. So allowing states to ban abortion doesn't mean bans will be effective. But more fundamentally, I think abortion opponents see their cause as securing fetal rights, not allowing states to do their own thing, which in theory is where we are now.

[Tiziana Dearing]

And I will note that in the year after Roe v. Wade was overturned, abortions in America, actually the number went up to your point. So I want to look now, Mary Ziegler, at what fetal personhood means in the law. This is part of what you explore and you bring us the Alabama Supreme Court case where they actually upheld the personhood of IVF embryos and disrupted access to ivf. Now, reaction across the political spectrum was fairly swift. Alabama itself ultimately passed a law shielding IVF providers from criminal and civil liability. But what is the argument in fetal personhood against ivf, even contraception, like what we heard from the Alabama Supreme Court?

[Mary Ziegler]

Well, if you believe that rights begin the moment an egg is fertilized, and if you believe this is a critical step, that the way you enforce rights is by punishing people who wrong an embryo or fetus or unborn child. It's easy to see why you might have a problem with ivf. So ivf, interestingly, has been in the crosshairs for some time. But now that fetal personhood is something that theoretically could be recognized by the U.S. supreme Court or by a state legislature or by a state supreme court, we're seeing abortion opponents come out much more vocally in condemning it than they have in years past, even though there have been concerns about IVF raised in the anti abortion movement prior to last year. Contraception is a more complicated question because abortion opponents are not necessarily arguing that contraception violates fetal rights in and of itself. They're arguing rather that we've misunderstood what contraception is. So we've already seen states trying to redefine the meaning of abortion since Roe v. Wade was overturned. And one of the ways that's been pursued by groups like Students for Life is to argue that drugs and devices we commonly think of as contraceptives, like IUDs and emergency contraceptives in particular, but potentially even the morning after pill, in fact, are abortifacients, and that protecting fetal rights involves probably regulating or criminalizing those drugs, too.

[Tiziana Dearing]

You talk about a direct line, Mary, between establishing fetal personhood and criminalizing abortion, including for people who have them. Talk about that link and whether there's a way to support the rights of a fetus. Should we get to the point of recognizing fetal personhood broadly in the law and not criminalizing it for people who have abortions?

[Mary Ziegler]

I think there are ways. You could make the argument that recognizing fetal rights doesn't require the punishment of people who have abortions. I think it's possible to imagine a world where we recognize fetal rights and don't punish anyone at all. Why, if we're recognizing fetal rights, does that not look more like giving more protection to pregnant women and not punishing everyone on the back end if a pregnancy ends or if an embryo is destroyed?

[Tiziana Dearing]

So with that sort of sitting there, Mary, what do you see as the next phase of the anti abortion movement in America post Roe?

[Mary Ziegler]

Well, the great irony, I think, is that the more the anti abortion movement commits to this vision of fetal personhood, the more it will depend on the very federal courts that said were wrongfully taking the issue away from the American people in Roe. Abortion opponents, I think, understand that voters are not likely to embrace a very criminal vision of fetal personhood, given that they already didn't want Roe to be overturned. So they've directed their focus to the five justices on the Supreme Court understanding that Donald Trump may have a chance to make the court more conservative. So I think that's really where the movement goes next. And whether we have more steps in this direction will depend in part on how responsive courts are to what voters think and whether, in fact, voters are the ones able to decide these questions at all.

[Tiziana Dearing]

Mary Ziegler is a legal historian and author of the new book the New Civil War Over Reproduction. Mary, thank you.

[Mary Ziegler]

Thanks for having me.

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